Unconstitutional expenditures – VI – The judgments in McCrystal, Part 1

CHILDRENSREFERENDUM-300x217Regular readers of this blog will be familiar with my series of five posts so far (I, II, III, IV, V) on the per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants’ expenditure of public moneys on a website, booklet and advertisements in relation to the children’s referendum was in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In the per curiam on 8 November last, the Court announced its decision, and said that judgments would be delivered on 11 December 2012. And, indeed, they duly were – judgments were delivered by Denham CJ, Murray J, Fennelly J, and O’Donnell J; Hardiman J concurred with all four. These judgments have already been the subject of a post by Paul McMahon on Ex Tempore blog, as well as a great deal of media comment (98fm | Belfast Telegraph | Irish Examiner | Irish Independent here, here, here and here | Irish Times here, here, here, here and here | RTÉ | TV3). My analysis will be in two parts. The first part, in this post, considers some of the issues which arose in the Court’s judgments. The second part, in the next post, considers the impact which those judgments have on issues raised in my previous posts.

In my first post on the per curiam, I suggested that the Supreme Court had given themselves five weeks to prepare their judgments because some rather knotty issues needed to be teased out, and I therefore anticipated that there would be substantial judgments. And so there are, four of them, rich, complex, and deserving of careful study. I also suggested that we could not exclude the possibility of a dissenting judgment; but, in the event, the judgments are unanimous. However, the fact that the decision is unanimous doesn’t mean that it was easy; for example, Fennelly J reached his conclusions “with reluctance” ([71], misnumbered [28]).

There are repeated references in the judgments in McCrystal, and in public commentary, to the “the McKenna principles”, deriving from McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), as though it were certain what those principles are. As O’Donnell J put it, “the decision of the Supreme Court in the McKenna case is well known” ([3]); but, in my view, it is not so well understood. In my previous posts, especially the second and third, I considered that the so-called McKenna principles are far from clear, and I therefore hoped that the judgments in McCrystal would provide some greater clarity. To the extent that there are four judgments, with differing emphases, there are limits to what clarity may be provided, but some aspects of McKenna have indeed been cleared up by McCrystal.

First, as O’Donnell J acknowledged, the judgments in McKenna cover many different issues; they “are notable for the breadth of the principles invoked” ([36]), dealing with “broad principles derived from the structure and underlying theory of the Constitution” ([38]); and they must be construed broadly ([36]) and not narrowly ([38]).

Second, Denham CJ extracted 9 principles from McKenna (see [37], [77]), but these cannot be taken as an authoritative statement of the elusive McKenna principles, because they were not expressly concurred in by any other judge (except Hardiman J, who simply concurred with everyone, so that really doesn’t count). However, because they are so easy to find and quote, these 9 principles will doubtless come to stand for “the McKenna principles”. However, rather than simply assert what they had extracted, Murray J ([7]-[31]), Fennelly J ([18]) and O’Donnell J ([3], [30]-[38]) all quoted extensively from the majority judgments in McKenna; and, from all four judgments in McCrystal, certain conclusions stand out. For Denham CJ, “event as important and solemn as a referendum to amend our Constitution requires that publicly funded information is fair, equal, impartial and neutral” ([76]; see also [37](i), [38], [77](i)). For Fennelly J, the basic principle underlying McKenna “is that of equal treatment. The government may not use public funds in a referendum campaign to … benefit one side rather than the other” ([23]). For Murray J, “the use of funds from the public purse to promote one side of the referendum campaign to the detriment of the others” would be in breach of the constitutional right to a fair and democratic referendum process ([28]). And for O’Donnell J, McKenna “cannot be understood as a narrow decision. It involved the application of broad principles derived from the structure and underlying theory of the Constitution, indeed some of its most fundamental concepts such as fairness and equality”. In McKenna, O’Flaherty J stated bluntly that “the Government must stop short of spending public money in favour of one side which has the consequence of being to the detriment of those opposed to the constitutional amendment” and this was repeatedly reasserted in McCrystal (see Denham CJ, [37](ii), [77](ii); Murray J, [17], [26]-27]). Similarly, in McKenna, O’Flaherty J stated equally bluntly that it is “bordering on the self-evident that … it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather that the other”, and this too was repeatedly reasserted in McCrystal (see Murray J, [20]; Fennelly J [20]). Consequently, “insofar as any campaign is paid for out of public funds, it is not permissible for the Government to favour a particular outcome” (Fennelly J, [20]-[25]). These various statements are rather closer to the kernel of what the Court in McCrystal understood the Court in McKenna to have decided, and may – if treated with circumspection – be taken as a shorthand statement of “the McKenna principles”.

Third, the Court provided a great deal of guidance on the nature of the breach which will trigger court intervention. In McKenna, Hamilton CJ held that if the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard of the powers and duties conferred on it by the Constitution, then the courts are not only entitled but obliged to intervene, and this principle was cited in all four judgments in McCrystal (see, eg, Denham CJ [30]; Murray J [12], [33]; Fennelly J [24]-[25], [54]-[59]; O’Donnell J [31], [34]). To the extent that Kearns P in the High Court had required that the relevant breach be “something blatant and egregious” rather than “in clear disregard” of the Constitution, he applied the wrong test. (Denham CJ [30]; Murray J [35]-[38]; Fennelly J [58]-[61]; O’Donnell J [35]). Indeed, as O’Donnell J observed, it was only “by setting the hurdle at the height marked ‘blatant and egregious’ that it was possible to conclude that the material in this case did not offend” the McKenna principles ([28]). More generally, as the same judge also observed, the “clear disregard” test “seems at least to provide in this case a readily understandable and applicable standard to judge governmental action” ([35]) – in these terms, it is a test of general applicability: it is “not limited to the specific context of referenda, but refers to the position of the exercise of governmental powers more generally” ([35]). In many ways, that may be the most important aspect of McCrystal, not its iteration of “the McKenna principles”, but its assertion that the standard which triggers judicial intervention against governmental action is whenever the government acts in clear disregard of the Constitution (see, eg, Boland v An Taoiseach [1974] 1 IR 338, 362 (Fitzgerald CJ); TD v The Minister for Education [2001] 4 IR 259, 336-337; [2001] IESC 101 (17 December 2001) [213]-[234] (Murray J); Curtin v Dáil Eireann [2006] 2 IR 556, [2006] 2 ILRM 99, [2006] IESC 14 (09 March 2006)).

Perhaps sensing the potential to curtail its actions in the confirmation of the “clear disregard” standard if the “blatant and egregious” standard were rejected, the government had two fall-back positions. First, they argued that the Courts should find a clear disregard only if the governmental action in question were unreasonable, as that term is understood in judicial review proceedings (State (Keegan) v Stardust Victims Compensation Tribunal [1986] 1 IR 642 (SC); O’Keefe v An Bord Pleanála [1993] 1 IR 39); but this was rejected, not merely by the unanimous application of the “clear disregard” standard, but also specifically by both Denham CJ ([30]) and O’Donnell J ([32]-[33], [39]). Second, since section 43 of the Referendum Act 1994 (also here) (discussed here) provides that a petitioner might question a provisional referendum certificate where he or she could show that the result was “affected materially” by an irregularity, the government argued that this test should apply, not merely after a referendum, but also before, so that only such unconstitutional matters as would “materially effect” the outcome should be enjoined by the Court. O’Donnell J disposed of this argument very elegantly:

40 … In the event, the Divorce Referendum which was the background to McKenna … itself provides a clear demonstration of the fallacy of this reasoning. The Government campaign was in fact restrained by the Supreme Court in McKenna … but the subsequent decision of the People was not set aside although challenged in Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61, [1996] IESC 6 (12 June 1996) where the petitioner relied on the self-same breaches of the Constitution which had been established in McKenna … If the test of material effect as applied in Hanafin is applicable in the McKenna … situation then the plaintiff ought to have failed. Alternatively, if McKenna … is to be understood as an implicit application of the material effect test then the petitioner in Hanafin ought to have succeeded. It is apparent that a different standard applies in any application to set aside the decision of the People once given, and for good reason.

In adopting the standard that the constitutional breach be “blatant and egregious”, Kearns J in the High Court in McCrystal set the bar as high as he did so as to avoid a judicial “exercise of hyper-zealous vigilance of information disseminated by Government”. In rejecting that standard in favour of a requirement that there be a “clear disregard” of the Constitution, the judges in the Supreme Court in McCrystal were careful to reassure that application of that test does not require the Court to conduct a punctilious examination of minutiae or to nit pick through every last detail (Denham CJ [76]; Fennelly J, [61], [71] misnumbered [28]); it “does not necessitate the Court in becoming enmeshed in the merits as such of the material or its minutia” (Murray J, [34]); nor does it require “the type of hyper zealous textual analysis rightly deprecated by the learned President” (O’Donnell J, [41]).

Moreover recalling the debate on the burden of proof in Hanafin, the members of the Supreme Court in McCrystal went out of their way to assert that the burden of proof lies on the applicant to establish, on the balance of probabilities, that, on the facts of the case, there has been a clear disregard by the Government of the McKenna principles (Denham CJ, [32]; Murray J, [32], [38]; Fennelly J [25], [59]).

Fourth, the key finding in McCrystal was that the Department’s expenditure on a booklet, website and advertising campaign was not fair, equal, impartial or neutral. The applicant had initially sought a declaration that the expenditure was not “fair, equal or impartial”; it was in those terms that the declaration mentioned in the per curiam was granted ([9]); and it was in those terms that Murray J discussed the matter in his judgment ([29]). However, to this triumvirate, Denham J added the further requirement that the expenditure must also be “neutral” (33), and she repeated the “fair, equal, impartial, and neutral” quadrumvirate several times in her judgment ([37](i), [38], [54], [64], [76], [77], [82], [84], [86]). O’Donnell J similarly adopted the the “fair, equal, impartial, and neutral” quadrumvirate ([30], [42]). Furthermore, whilst Fennelly J referred to the “fair, equal and impartial” triumvirate, he also referred to a requirement of strict neutrality ([26]) and held the campaign “was not fair neutral and impartial” but instead amounted to “advocacy” ([71] (misnumbered [28]). So, of the four judgments, three expressly hold that the relevant standard is that referendum expenditure by government must be fair, equal, impartial and neutral.

This finding was reached after a searching analysis of the evidence (relating to the booklet, website and advertising campaign, and to affidavits filed by both sides) in all four judgments (Denham CJ [52]-[75]; Murray J [40]-[52]; Fennelly J [27]-[49], [63]-[68]); O’Donnell J [7]-[27], concentrating on the website [8]-[15]). In this respect, two quotes in particular stand out for me. For example, Denham CJ proved herself adept at understanding social media:

“Like” link
65. Another feature of the website was the “like” link associated with the social media website “Facebook”. This appeared on the children’s referendum website and it was removed because there was no option but to click the “like” link. This illustrated the campaigning tone of the website in favour of a yes vote and indeed it was removed by the respondents when objections were made by the appellant.

In the event, having considered all of the evidence, she held that “the cumulative effect of the matters identified in the above materials amounts to a clear disregard of the McKenna principles” ([76]), and, in particular, that “the booklet, website and advertisements published by the Minister with the use of public funds were not fair, equal, impartial or neutral” ([78]). On another aspect of the evidence, Fennelly J made the interesting point that issue before the Court in McCrystal arose in a context different from McKenna:

51. … In that case, of course, public money had been voted by Dáil Eireann, as the headnote to the report records, explicitly for the purpose of use in a publicity campaign to encourage a “Yes” vote in the referendum proposing the removal of the constitutional prohibition on divorce. The Court did not need to consider whether the actual material was designed to favour a particular result and did not do so. McKenna does not lay down any criteria for judgment as to whether a particular government campaign infringes the limits laid down in the judgments.

And it is because the Court in McKenna did not need to lay down such criteria that it fell to the Court in McCrystal to do so. Further, by requiring that government expenditure in a referendum be fair, equal, impartial and neutral, and by allowing suit to establish on the balance of probabilities whether the government had acted in clear disregard of this constitutional requirement, the Court in McCrystal did in fact lay down the necessary criteria. These, then, are the main issues which arose in the Court’s judgments in McCrystal. In my next post, I will consider the impact which the judgments have had on other issues which I raised in previous posts.